Verdict of Interest

On January 27, 2016 a Lee County jury (County Court) returned a plaintiff verdict of $85,891 in Nguyen v. Dao.  The plaintiff worked for Dao at the Ichiban Japanese Grill in Tupelo.  The case arose where the plaintiff alleged that she was fired for reporting illegal activity and that she was not paid properly under the Fair Labor Standards Act. The jury agreed and rendered a verdict for $1,943 for lost income because of discharge for reporting illegal activity, $50,000 for mental anxiety, and $33,948 for violations of Fair Labor Standards Act.  Here is the final judgment.

Offer of Judgment

Rule 68 is an effective settlement tool. It provides that if the judgment that an offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs included after the offer was made. For example, if a plaintiff rejects a defendant's offer and then recovers less than that offer at trial, the plaintiff must pay all of the defendant's costs that were incurred after the date the offer was made.

Courts have held that "costs" include attorney fees when the underlying statute provides for the recovery of attorney fees as costs. Accordingly, attorney fees are recoverable costs in civil rights, employment discrimination, unfair and deceptive trade practice and consumer protection cases. Moreover, breach of contract cases may also provide a basis for attorney fees if the contract at issue contains a fee-shifting provision.

The Third Circuit addressed this issue in Lima v. Newark Police Dep't , 658 F.3d 324 (3d Cir. 2011), a civil rights case. The Third Circuit held that a defendants' Rule 68 offer that "allow[ed] judgment to be entered against defendants in the amount of $55,000, including all of plaintiff's claims for relief against all defendants" did not preclude the plaintiff from subsequently seeking attorney fees. The court reasoned that the claim for attorney fees survived because the agreement did not expressly stipulate was (1) inadmissible extrinsic evidence and that (2) defendants' "expectations and intentions" were not terms to the Rule 68 offer.

The Third Circuit stated that when the costs are included in the offer of judgment, the offeror is not subject to any additional liability. When, however, the offer of judgment is silent as to fees and costs, they must be fixed by the court after the offer of judgment is accepted. Moreover, extrinsic evidence of the parties' subjective intent is not admissible to determine whether a Rule 68 offer of judgment includes costs and attorney fees.

Book Review

I recently finished Don’t Eat the Bruises by Keith Mitnik.  He is an attorney with Morgan and Morgan who mainly just handles the trial for various attorney.   It’s also not a book that offers a system.  The book suggests approaches to incorporate into the practitioner’s existing trial system. The first third of the book covers voir dire. Mitnik devotes other sections to opening, the evidence phase (direct and cross), closing and dealing with the burden of proof.   The book's voir dire issues alone are well worth the read.  This is one of the better law books I have read and it does not get boring. 

Intoxication as a Defense

On Thursday, the Mississippi Supreme Court decided Hale v. State located here.  The Defendant in the case alleged that his drink was spiked such that he did not have the specific intent to purchase certain narcotics.  The conviction was ultimately affirmed.  However, this case has one of the most detailed discussions of when intoxication is and is not a defense to a crime.  It also discusses automatism which the court hints is a potentially viable defense in Mississippi.  I am surprised this defense is not used more. 

Medical Malpractice Affidavit

On Tuesday, the Mississippi Court of Appeals decided Gray v. Graham located here.  The issue in the case was the sufficiency of an expert affidavit.  The opinion does a detailed discussion of what is required in the affidavit and hints that when the expert deposition differs from the designation, it may be seen as conclusory.  That was not the case here and the decision to dismiss the case was reversed. 

Brief of Interest

The Mississippi Court of Appeals is hearing oral arguments in Strickland v. State today.  The brief of the Appellant is located here.  There are several good arguments in the brief concerning text messages and the Rules of Evidence which are worth reviewing.

Finding More Damages

A good place to find damages is with the health insurance explanation of benefits.  Many times, there are additional charges on there for which there may not be records.  This is often where a patient is treated at a hospital and a third party does the testing of various items or reads records.